Australian Securities and Investments Commission v Mercer Superannuation (Australia) Limited

COURT OR TRIBUNAL

Federal Court of Australia

DATE FILED (OR FIRST HEARING DATE)

27/02/2023

LITIGATION TYPE

Corporate Accountability

SUBJECT MATTER

Misleading and deceptive conduct

REVIEW TYPE

N/A

SUMMARY

(Extract from website)

"ASIC has launched its first court action against alleged greenwashing conduct, commencing civil penalty proceedings in the Federal Court against Mercer Superannuation (Australia) Limited (Mercer) for allegedly making misleading statements about the sustainable nature and characteristics of some of its superannuation investment options. ASIC alleges Mercer made statements on its website about seven ‘Sustainable Plus’ investment options offered by the Mercer Super Trust, of which Mercer is the trustee. These statements marketed the Sustainable Plus options as suitable for members who ‘are deeply committed to sustainability’ because they excluded investments in companies involved in carbon intensive fossil fuels like thermal coal. Exclusions were also stated to apply to companies involved in alcohol production and gambling. However, ASIC alleges members who took up the Sustainable Plus options had investments in companies involved in industries the website statements said were excluded."

At a case management hearing on 18 August 2023, it was reported that the Court heard that ASIC is not expecting Mercer to contest liability in the case. However, a statement of agreed facts is yet to be filed. While there are likely to be several penalty factors to be agreed, the Court heard that there may be several factors contested at a penalty hearing if the parties cannot reach agreement. At the penalty hearing on 7 December 2023, the court heard that Mercer has agreed to pay an $11.3 million penalty. Justice Horan reserved his decision.

CASE DOCUMENTS

VID117/2023 AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v MERCER SUPERANNUATION (AUSTRALIA) LIMITED ACN 004 717 533
23-043MR ASIC launches first Court proceedings alleging greenwashing
News article
News article
Australian Securities and Investments Commission v Mercer Superannuation (Australia) Limited [2024] FCA 850